USPTO upholds Eolas’s embedded Web app patent

It's a dark day in Redmond, and none too sunny everywhere else as the USPTO …

Ever since the Internet became a place where fortunes are made or lost, one of the most vexing features of the online scene has been the periodic emergence of a long line of doomsday patents. You know what I'm talking about—patents that cover basic Internet functionality that we all use, like streaming video, or hyperlinks, or applets embedded into web pages.

This last patent, the infamous '906 patent granted to Eolas and the University of California, was one of the first patents to get the young online tech scene riled up way back in 1998. At that time, Cringely was the first to bring Eolas to light as, at best a very irritating thorn in Microsoft's side and, at worst, really bad news for anyone who wants to do anything interesting with a Web page.

The dot-com bubble has since come and gone, and Microsoft has moved on from the late 90's antitrust troubles that many thought would do them in, but Eolas and the '906 patent are still kicking, and they've just scored a major victory against the Redmond giant.

A back-and-forth series of legal victories and setbacks (covered on Ars) had previously resulted in the USPTO provisionally invalidating the '906 patent. This decision was greeted with joy in the tech community, but it looks like we rejoiced a bit too early. The USPTO moved today to uphold the Eolas patent, dealing a serious blow to Microsoft and potentially to everyone who makes or uses a Web browser.

I myself had mistakenly thought that the USPTO's previous invalidation of the patent was pretty much the end of the story. I guess this is why I'm not a patent lawyer. According to a lawyer/blogger cited by eWeek, a review of an existing patent by the USPTO usually results in an initial, provisional invalidation while the agency takes a closer look at the prior art. This invalidation is often overturned after the full review is completed. So Eolas's case history fits this profile, with a full review now having validated the company's patent.

I'm not going to do any doom-and-gloom speculation on what this victory means, especially when the infringement case is being appealed to the Supreme Court; I'll let you guys handle the speculation in the discussion thread. I'll just wrap up by noting that the '906 patent appears to be vague enough to cover almost any program that's embedded in a Web page and that talks bidirectionally with a server. That means not just Microsoft's ActiveX, the technology that originally brought on the round of Eolas vs. Microsoft infringement lawsuits, but Flash, Java, and most of the other stuff that makes the Web interesting to use. So there's no doubt that if the Eolas folks can take this fight all the way, they'll be very, very rich. It remains to be seen, however, just how much headache they'll cause for the rest of us as Microsoft and everyone else rushes to work around the patent.

I realize that the patent system is supposed to be in place to encourage innovation. But I don't think a mad, industry-wide rush to cook up potentially painful work-arounds was the kind of innovation that the Founding Fathers had in mind.